from the monkey-see,-monkey-do,-monkey-sue? dept

Remember our story last week, discussing the copyright issues of monkeys taking photographs of themselves using a photographer's camera that he had left alone? The whole post was about whether or not anyone had a legitimate copyright claim on the photos, noting that the photographer, David Slater, almost certainly did not have a claim, seeing as he did not take the photos, and even admits that the images were an accident from monkeys who found the camera (i.e., he has stated publicly that he did not "set up" the shot and let the monkeys take it). And yet, Caters News Agency has a copyright notice on two of the images, claiming to hold the rights to them. We doubted that the monkeys -- who might have the best "claim" to copyright on these photos, if there is one, had licensed the images.

Either way, we were a bit surprised to receive a notice on Monday from Caters News, telling us they represented David Slater with respect to the syndication of those photos, and asking us to take down the photos. The notice was not a DMCA takedown notice. It doesn't even mention copyright, though that seems like the only basis upon which they would make such a takedown request. And, to be clear, it was not in the least bit threatening. There is no legal language and no threat at all in the note. Here it is in its entirety (minus the name and contact info of the person who sent it):

Hello,

I have noticed you have used David Slater's images on your website. However we are representing David Slater and syndicating these images on his behalf.

These images are being used without David's or our permission, therefore can I ask you remove these images from your site immediately.

Please email me to inform me when this done.

Thanks

Given that the very nature of our post was to point out that it's unlikely that Caters has a legitimate copyright claim on these photos, it struck me as a bit odd that they would not even address that at all. In fact, I almost wondered if this was a prank from someone. So I contacted Caters to confirm that it was legit and received confirmation saying that it was, indeed, genuine. After consulting no fewer than four lawyers (I'm nothing if not thorough) on this matter, I decided that the best course of action was just to ask for a clarification, since they did not make clear the actual basis for the request, and point out that it's not at all clear Caters has any legal claim whatsoever. At the same time, assuming they could come back with some legal argument for why the copyright was legit, we decided to make it clear that we believe, strongly, that the use of the images was protected fair use, if they actually are covered by copyright. Since the initial email was not threatening or legalistic, I decided that it was best to reply in kind, without having a lawyer respond on our behalf.

In response to your email concerning the posting of images
that were taken by some monkeys using David Slater's camera, I was
hoping you could elaborate on your request for us to remove the
images. Your request never uses the word copyright, but in the
absence of a copyright claim it is not clear to me on what basis you
might be asking that the photos be removed. If you ARE asserting a
copyright claim, what is the basis for your claim that Slater holds
the copyright on any of the images (and thus, had the right to license
them to you)? In the original article, Slater himself apparently
admits that the images were an accident from monkeys who happened upon
the camera, so I'm trying to understand the basis for claiming that
the copyright on the images are Slater's to license?

Separately, we believe strongly that the use of the images in our post
was quintessential fair use under US copyright law. The post itself
was not about the photos, so much as the copyright issues raised by
the photos. As such, displaying the photos as part of that discussion
was necessary to make the point. We believe the very nature of the
discussion around the copyright question makes this a transformative
use of the photos, Furthermore, Section 107 of the Copyright Act
lists out "news reporting" as one of the key purposes for which fair
use is designed to cover.

As this very discussion relates to the point of our original post, we
also intend to make this discussion public, as it would likely further
the commentary around the copyright on these images.

Thank you,
Michael Masnick

Caters was quick to reply, and it appears they have a rather different view on these things:

Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere - I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.

If I'm reading this correctly -- and I believe that I am -- Caters News Agency is claiming that anyone, copyright holder or not, can issue a takedown on a photo, if they can claim that the person using the image is not the copyright holder either -- regardless of whether "fair use" applies. That's... an interesting interpretation of the law. It's also not a valid interpretation of the law. In fact, in some places, sending a takedown notice, if you are not the copyright holder, is what's actually against the law. It's absolutely true that we are not the copyright holder, but as I made clear in my email, that does not matter, as we believe that our use qualifies as fair use. The whole point of fair use is, in fact, to allow those who are not the holders of the copyright to make use of the work in some cases, so it seems odd that Caters would imply no such thing exists.

Also, the second paragraph seems completely out of left field. If the images are either public domain or fair use, then there is no "theft" or "lifting" at all. And, no, I'm not "encouraging copyright theft" at all. You could say I might be encouraging fair use, but that seems like a good thing, doesn't it? Separately, "copyright theft," implies someone falsely taking possession of the copyright itself, not making use of a work. I don't see how that applies to us at all. We're not the ones claiming a copyright on an image we have no copyright interest in. Finally, whether or not we got the images from the Daily Mail seems entirely superfluous. At no point has Caters suggested that the Daily Mail holds the copyright on these images, so bringing up the Daily Mail seems to suggest a bizarre situation where Caters appears to believe that our fair use efforts violate some totally unstated right that the Daily Mail holds on these images.

Either way, we stand by our original analysis. We do not believe Caters News Agency has a legitimate copyright interest in the photo, and the company is in no position to issue a takedown of the images. Furthermore, even if it does turn out, through some convoluted process, that Caters does have a legitimate copyright interest in the photo, we believe that our use falls squarely into the classical confines of fair use under US copyright law. Thus, we have no plans to remove the photos or make any changes, barring Caters providing us with a sound basis for doing so.

More importantly, this highlights another case of someone completely misunderstanding the purpose and intent of copyright law, believing that it is universal and that it gives total control to the copyright holder. Caters does not even seem willing to consider that this image might not even have a copyright given its provenance. In fact, under Cater's own definition, it seems just as reasonable for us to ask that it take down the image, given that we do not believe that it has a valid copyright interest in the image either. Not everything gets copyright, and when something is covered by copyright, it does not give the rightsholder full control over every use. It's unfortunate that a company that has built a business around copyright appears not to understand these basic facts.

Sad

Based on the non-confrontational tone of the original request and your reply, I was gearing up for an interesting explanation by Caters on the issues you raised . . . but instead they just went off the rails, ignored everything you said, and spewed a bunch of irrelevant nonsense at you.

Please accept this image of a spider as payment for the use of the images the monkeys took. Please note acceptance of this image if you are not the rightful copyright owner constitutes copyfraud. If you are not the legal copyright owner, please return this image and delete this email and associated image to avoid any future copyright issues.

I still think that it is a good, elaborate joke. I do appreciate good dark humor without "just kidding" disclaimers. Some "rouge" employee in charge of public relations is capable of pulling this stunt. Is this company big enough to have sense of humor - killing and common sence - killing policies in place?

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I still think that it is a good, elaborate joke. I do appreciate good dark humor without "just kidding" disclaimers. Some "rouge" employee in charge of public relations is capable of pulling this stunt.

I will note that the original note and the following responses were from 2 different people. So it's not just one employee.

They messed with the wrong website. Not only is it very questionable whether they own the copyright or not, and therefore can't ask you to take it down *at all*, but this is clearly a case of fair use.

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Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

I don't think Caters is saying that it doesn't matter who owns the photos and that they can ask what they want. I think this is them dismissing any concern over the "discussion" here, revolving around who owns the copyright.

I think they are responding to your statement:

we also intend to make this discussion public, as it would likely further the commentary around the copyright on these images.

...albeit in a poorly worded way.

That's how I read it, at least. I don't think the academic questions are of any interest to them. This is just part of their business routine.

Let's streisand this!

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...not that I think they have any claims here. I don't think it matters who owns the copyright since this seems to be a clear case of Fair use. But, I don't think they meant to claim that they don't know who the copyright holder is.

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Just a thought!

Mike..You up for crowd sourcing the next response? Instead of the regular back and forth with a bunch of legal douche-baggary, let's beat them to death with the peanut gallery....

Perhaps we could start with Dark Helmet's rare blend of sarcasm, flow right into a brain bending breakdown by Fudbuster, and finish up with an incomprehensible string of profanity from Darryl...! Hell yeah!

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No, I think Caters did this without consulting a copyright lawyer.

Even if they did, there's no indication it's a lawyer sending the communications. Certainly no reason to jump to a "WFT is wrong with lawyers?" conclusion (unless you just like that conclusion no matter what).

I'm curious about similar potential scenario. What if a photographer has set up a camera so that it can be tripped when an animal crosses it's line of sight? Maybe with a laser. The situation would be mildly similar. Technically the animal would be the entity which took the photo. I'm reasonably sure at least some nature photos have been taken in this manner, so the question of copyright has probably been reasoned out before?

I know this hypothetical situation is different from the post since the photog didn't set up the camera for the monkeys, but it raises the question: which specific act is the "creation" with a camera?

In the laser trip situation, obviously the photographer set up the system, aimed the camera, made some considerations for lighting, etc. But, in the macaque case, the photographer still had to put a memory card in the camera, leave the lens off so it could reflect, leave it on a usable setting when it was turned off... it's all a little confusing to me.

Copyrighting animal pictures

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Some of these issues were discussed in the comments to the original post on this topic. Sort of a tough call from a copyright perspective, but I think it's plausible that the person setting up the camera might legitimately claim a copyright in the resulting photos.

Re: Just reply with this:

As I pointed out in the comments of the original post on this subject, even -if- the monkey could grasp both the concept of the copyright sublicensing agreement and the pen to sign with, the agreement would still be invalid as Macaques live a maximum of eighteen years so the monkey that took the photos is most likely a minor.

Comment Troll

How much you want to bet that the person that wrote the second one is a comment troll. Their over reaction, and blatant ability to hear only what suits them is highly evident.

Instead of responding to the claims of fair use, which Mike never actually declared, but rather opened up for discussion, where completely ignored in favor of resulting to inaccurate assumptions and name calling.

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Or alternately, we teach the monkeys sign language. Particularly, we only teach them the signs for, "Subject to the provisions of this agreement, I hereby assign to the [photographer] all rights, including all rights of copyright, in and to the copyrighted works within the territory and the PURCHASER hereby becomes the owner thereof."

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In any one comes out with a theory, and then practice shows that there is a lot of contradictions and myriad of interpretations, it is natural to declare such a theory as failed rather than continue applying it to everything.

Copyright is a theory, a failed theory. I understand good intentions behind it's birth, but it takes courage and honesty to admit a mistake. Perhaps humanity will come up with some good mechanism to balance personal/corporate and public interest, but since I'm becoming more and more copyright minimalist every day, I'm inclined to think that no copyright would be better than copyright in its current form.

Re: Comment Troll

that did sound a hell of a lot like the AC shill that spews nonsense on here, especially the On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs. part...

Re: Copyrighting animal pictures

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@Huph

My instincts tell me that due to the diligence and forethought of planning and configuring the camera, the claim could be made to the resulting photo. In that example the person obviously created the situation intentionally and created a trigger mechanism to be used for that specific purpose. It certainly would have more claim than that of an accidental theft and subsequent picture.

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copyright is the idea that people have the right to profit off their ideas, or the right to limited monopoly. but as it has been well documented, monopolies are extremely dangerous. does any person really think they should own an idea?

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Yeah, that's how I see it, too. It's just that we've found an actual fuzzy copyright scenario, so it raises some odd questions.

Conceivably a photographer could aim to do what Slater did by somehow enticing the monkeys to play with the camera... I guess in that instance I could more clearly see Slater as the copyright holder. But, how much does intent or forethought play into copyright? I mean, copyright infringement that is accidental is still infringement, right? So does the intent really matter?

lol, it's so obvious that they are trying to use all that "theft" terminology to make it sound terrible for you to have the pics in your article, but it's like some idiot with a thesaurus swapping out words that don't really make sense in the context they put them in.

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Just as a semi-related thing, what host service do you use? I use Pair and they panicked after they got the MMPI copyright DMCA notice from me using 17 of their questions. They said if they get another complaint, they're cutting me off whether what I'm doing is legal or not. They don't want to deal with it. I'd like a new host after that.

Carter News, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere/something/something - I presume the helpless monkey. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.

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Well, you have to first be sure that an idea is definitely just "an electrical impulse in a bag of meat". Maybe ideas are beamed straight from god. Maybe they are very tiny quantum-sized pieces of tangible items inside our brains. (Not that I believe either of those things, but they haven't/can't be absolutely dis-proved) Science is still pretty far from understanding the thought process.

But, while I agree in general that monopolies can easily turn foul, they are not wholly evil. You have a natural monopoly on your body, for instance. I have a natural monopoly on actions I take, in that as far as I know my actions are wholly my own. I have a monopoly on my subjective experience of the world by natural default.

Also, copyright is not about owning an idea. It's about monopoly on a specific expression of an idea. At least, ideally it should be so. People definitely do take advantage of it. But on the whole, I think copyright has been a boon for civilization. However, it's scope certainly needs to be re-examined in a modern light considering the ubiquity of networked computers.

Re: Crowd creativity, anyone?

Subject: Any Positions Available?

Sirs...

I am a monkey who has mastered both the operation of a camera and (obviously) a computer keyboard.

Do you have any positions available for photographers?

Even though I am a monkey, I am prepared to fully assign my copyright to you under contract. To ensure this is legally possible, I have consulted my attorneys at Bannana, Slip and Fall, LLC. and they assure me this is completely legal.

Would it be wrong to send them one of those fruit "flower" arrangements with lots of bananas to try and win the monkeys over to our side?

They obviously misunderstood where they were sending their cute little note to the first time. And for Mike to have the audacity to not just meekly bow down to their very polite request has stirred up much concern for them.

But then look at the "industry" they are in, when they "lift" pictures from others it is always fair use. When someone does the same thing, they need to be sued into oblivion.

I am sure they have convinced themselves (with the help of lawyers) that every time someone see an image they own without having been paid along the way, they are now out millions of dollars.

Copyright, I do not believe, was ever intended to work in this hybrid bastardized form we have today. It was meant to make sure someone could produce more and not have to spend all of their time trying to fend people off copying their work. But all great culture is remixed or built on the shoulders of those who came before. Once upon a time you could say this painting was inspired by a story. And people who liked the painting would then look for the story. Now if you said that you would get tied up in court for years (or until your broke) fighting that the author somehow does not have special rights to something you created because HE inspired you.

They want to lock up the IP for as long as possible + 120 years so they can "protect" it. But they do nothing with it, and really in todays culture is Mickey Mouse that relevant outside of an ambassador at Disney? How many children now see the mouse and wonder why he is there, where is the little mermaid or one of the other characters for recent movies. Why do they not have top billing over the mouse? Because unless the parents teach them who the heck Mickey is... they have no idea, because nothing new is available.

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I fear most people just bow down and do what their told. After all, one wrong move and they could end up in court spending thousands of dollars regardless if what they're doing is legal or not. Better to not take a chance, right?

Thanks to copyright law, corporations have robbed the public of over a century of culture.

Re: Crowd creativity, anyone?

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I don't see the trip-wire argument working for Caters. In that case, the photographer has set up all the elements (field, depth, light, etc.) and has a near 100% expectation of getting the shot when an animal appears. He is taking the picture using remote control. In this case, he did not take the picture, either remotely or physically. Had the animal not pushed the button, there is no picture. The only way to claim any ownership here is by saying "It's my camera, my picture.", which probably everyone in this forum already knows does not actually confer copyright ownership.

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You do realize that if you keep this sort of crap up, insist on "fair use", linking to video's on YouTube, quoting other peoples articles, and generally keep mouthing off to these gods of content, that you will end up on a list of rogue websites.

After all is said and done, you will end up in Jail, penniless, with your internet surfing license revoked, with no ability to protest, and no legal option available to you. Perhaps you might even be the first person put to death as a copyright thief. That will learn you ...

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monopolies aren't really evil at all. Theoretically if you have a monopoly it's because you have defeated your competition and are good enough at what you make that it's not worthwhile for new competition to come fight you.

What is evil is when the monopoly isn't earned or natural, it's forced through legistlation, then well you didn't beat out your competition, you don't have to be working hard, you are just relying on the government to make your way for you.

Re: Re: Just reply with this:

Actually, the monkey, if owned by someone, might be a "chattel," thereby entitling its owner to the copyright on its "works." This is pretty clearly not the theory on which this particular cease & desist was sent--either they knew it didn't apply (unlikely) or didn't think of it at all (way more likely) but it's out there as a crackpot possibility. I wonder if the photographer/discoverer of the monkeys' photos were to claim after-the-fact that he was the monkeys' owner (probably illegal under law of the US and many other places) if he could then claim, ex post, that he owned the photos that he discovered in his camera.

On balance, I'm going with my response about discoveries not being protectible by copyright. I'd love to see some fucker come to court with the above theory, though. Slater Monkey Trial anyone?

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I'm not prepared to declare it failed, but it needs to be pared back to the original creation. "Useful arts" was a term used to reference artisans, not artists. It was for craftmanship and manufacture. Science included things like philosophy and Literature (which I find highly questionable, but there you have it). There was never any basis for covering paintings, advertising, or photography among most other things. I don't really believe a good argument can be made that society needed to provide copyright protection to pictures.

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Oh, good: another one of these. I'll say it again: if you don't have anything better to say, fucking blow me. I don't see a single mention of a lawyer sending anything claiming anything here. Want to see a lawyer in action on this particular topic? Check my other posts. Then you'll at least know what substance in a post looks like.

Now go tar and feather someone who deserves it, as opposed to making stupid generalizations.

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I don't think the theory is perfect, but it could be workable. I think the problems we are having with it going completely off the deep end are symptoms of a much broader issue with our politics and lawmaking in general.

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Geography playing a role: yes and no.

The alleged copyright holder may have different rights in acquiring copyright depending on their jurisdiction. So the U.S.-based analysis of authorship by Mr. Masnick might not apply in all jurisdictions.

However, the fair-use exceptions and the DMCA takedown process (if ever properly used) will fall under U.S. law.

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Thanks, mate. I appreciate this distinction being drawn once in a while. A friend of mine is currently being defended from copyright infringement claims by EFF lawyers. And I bet no one here is lining up to bash that beautiful piece of pro bono work.

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Re: Copyright Issues

Whoever set up the camera with the timer or the trigger. The thing about this particular situation with the monkeys is that it seems to be one of the few situations imaginable where a photographer canNOT claim copyright in pics (other than where the subject matter itself is covered by copyright) and the fact that these notes were sent re their takedown is particularly hysterical in that regard. Lets you know that no one thinks before sending at al

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oh, and you mean it's not *supposed* to cover ideas. It does, of course, since disney and whoever else want it to. Just try writing an original story based on an idea that they used first and see that copyright covers ideas.

Mike, they do have one really valid point: You are not the copyright holder, and without permission from the rights holder, you really should not be using the material. Can you say without a doubt that you are using the material in the clear?

I would hate for you to lose your "empire" because someone proves you wrong.

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"Actually, the monkey, if owned by someone, might be a "chattel," thereby entitling its owner to the copyright on its "works.""

That's sorta cruelty to animals. Did the monkey ever agree to hand his rights over to the owner? Why don't they get a say in this? They're just slaves to their owners yet they create content without copy protection laws. More evidence that these laws aren't needed for content to be created.

But that's what IP laws are really about. They're about allowing those who don't create (in this case, the monkey owner) to exploit those who do create (in this case, the monkey).

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That's exactly what I was thinking. Also, by their logic, if anyone can request that these pictures be removed I think Daily Mail should be requested to remove them until the monkey in question gains the faculties to allow it to give permission to use its pictures.

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"Even if they did, there's no indication it's a lawyer sending the communications. Certainly no reason to jump to a "WFT is wrong with lawyers?" conclusion (unless you just like that conclusion no matter what)."

I agree. Had it been a lawyer the letter would have been plagued with all sorts of legal threats and it would have been much ruder than that. The lack of threatening language and imaginary hyperbola indicates that it wasn't sent by a lawyer.

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Can you say without a doubt that you are using the material in the clear?

Unfortunately, because fair use is only a defence, there is never a situation in which you can say "without a doubt" that it applies. However, there is probably no single better-established example of fair use in the U.S. than publishing photos, quotes and documents for the purpose of news reporting and commentary.

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Yeah, I know what I said, but I was referring to the emails. I should have been more specific.

But, as long as you're going to be a pedantic misanthrope, nothing indicates that they have asserted a legal claim (e.g., a claim for copyright infringement) in the sense that "claim" is synonymous with "cause of action."

Monkey Business

Mike:
You might want to contact National Geographic's legal department on this. They have implemented and used several animal-triggered photo sessions in the mag, and thus probably have answered the legal questions.

However, in those cases, the cameras and trigger devices were set up by the photog. The images weren't taken by an animal in physical posession of the camera, so it may not apply.

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Well, "idea" is a term of art in the copyright context.

Anyway, if you have a particular Disney case you're referring to, I'm interested.

If you're just indicating that big companies get what ever result they're willing to pay for, actual case law does not really conform to that supposition. See http://www.ca9.uscourts.gov/datastore/opinions/2010/07/22/09-55673.pdf (page 10540 is where Judge Kozinski begins explaining why lots of features Mattel claimed it owned copyright in are unprotectable ideas, rather than expression).

Wow don't people have better and productive things to do than to complain about monkeys taking a photo of themselves? Oh noes my dog clicked the flash on my camera and took a beautiful shot of the ocean.. c'mon they aren't capable of thought. It's just as bad as a credit card company giving a dog a credit card. How can this even be argued?

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Yeah, I can tell you're a lawyer. Like I said, I agree that the letter sent to MM was not sent by a lawyer. Had it been sent by a lawyer, it wouldn't have been worded as politely as the above letter. It would have been worded more similarly to your post.

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...and without permission from the rights holder, you really should not be using the material.

Huh? It's a pretty clear case of fair use. From Mike's post:

Furthermore, even if it does turn out, through some convoluted process, that Caters does have a legitimate copyright interest in the photo, we believe that our use falls squarely into the classical confines of fair use under US copyright law.

When using something in a fair use situation you do not need permission - that's kind of the whole point of fair use.

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My post was intentionally extreme (in sake of polemic, not trolling), and I believe that copyright is mendable in theory. I’m much more pro-evolution that pro-revolution. But in practice, those who benefit from lopsided laws (directly or through lobbying) are in charge of mending. That’s a dead end.

Imperfect technologies, laws, concepts are mendable if those who understand them, those who did not forget the reason and intent behind them are those who work hard to perfect these technologies, laws, concepts.

For example, hand gliding was a dangerous hobby a couple of decades ago since the gliders were far from perfect. Nonetheless, it is pretty much safe and widespread occupation now because of knowledgeable and responsible enthusiasts’ efforts.

And yes, I would declare hand gliding concept failed if coffin makers were in charge of improving gliders.

The following is quoted directly from Section 503.03 of the current Compendium of Copyright Office Practices (published by The U.S. Copyright Office):

503.03 Works not capable of supporting a copyright claim.

Claims to copyright in the following works cannot be registered in the Copyright Office:

503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

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Of all the people involved, I have to think that the person who set up the camera, gave it to the monkeys, retrieved the photos and (presumably) tweaked them in photoshop has a pretty solid claim to the copyright of the images.

I was thinking the same thing you were, only with respect to a security camera. Does anybody own the copyright to images recorded by a camera bolted to the side of a building that is recording 24/7?

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The letter of the law is irrelevant, it's the intent of law that matters. The intent of law was solely intended to benefit IP maximists at public expense. Who cares about the law, the importance of obeying the law only matters when the law favors IP maximists. Otherwise, it doesn't matter.

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I'm not going from copyright law here, but laws of personal property. If one owns chattel, then one owns anything produced by that chattel--it's sometimes odd to think of living things in this regard, so think of a machine instead: if I own a printing press, then I own the papers printed on it (I know, I know: "what's a printing press?"). You're absolutely right that I'm extrapolating, though, and in places where animals are considered beings with their own rights, rather than things to be owned (Berkeley, maybe?) the conclusion could certainly be different. I alluded to this above where I talk about the impossibility of this dude owning these particular monkeys. But if he did own them...ok, enough.

I'm a little disappointed

On Monkeys and 24/7 Security Cameras

Pg. 20-21 of "Copyright: Examples and Explanations" by Suffolk University Law Professor Stephen M. McJohn:

The limitation of copyright to "works of authorship" also implies an author. This appears to mean that a human created the work, using the requisite creativity. In a work made through a completely mechanical process, copyright might be denied on the basis that no one was the "author". If a security camera mounted in a lobby, recording 24-hours a day, captured a dramatic event, the video could be uncopyrightted.

Computer-generated works also raise the issue of authorship. If works are generated automatically or are the product of some future artificial intelligence, there may be no human author. The question would likely be whether the work reflected originality on the part of a human, or whether the choices were actually made by a computer.

"Works" created by natural processes or by nonhuman animals would also not be "works of authorship." Lava flows off volcanoes may form fantastical shapes, but are not copyrighted, not being the product of a human author. Elephants and gorillas have both been taught to produce paintings. The paintings are not copyrightable, not being works of authorship.

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Well, since copyright springs solely from federal statute, and the federal statute has pretty clear ownership rules spelled out that don't include anything about ownership of works created by chattel, I'm pretty sure that the chattel argument wouldn't fly.

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I'm confused. Are you saying that people using content in fair ways should accompany their uses with a statement that "the accompanying use of [work] is fair under US copyright law and should not serve as a basis upon which to send me a nastygram or drag me to court?" Because that seems a little silly--in practice and in fact, fair use arises as a defense. It's a valid reason why doing something is okay, but it only comes up actively when that something is challenged.

I mean, that's sad--that folks often fire off cease & desists and file complaints before considering fair use implications, but they do, and that's why fair use exists as a defense to infringement. It's like justification as a defense to a murder charge--you still get tried, but you raise justification as a defense. You were justified the second you did the killing, but that doesn't stop the legal system from working in the direction it always does.

Re: Re: Re:

Reply back letting them know you've tracked down the monkeys and spoken to them about the photos and they've gave explicit permission to use the photos any way you'd like. The exact quote was "oooh oooh ahh ahhh" followed by the customary throwing of feces.

Re: Re: Re: Re:

A little of both, joking and prophetic. It's the vision that the content types seem to be aiming for.

If you want we can discuss the technologies that are going to happen as a result of this massive push on the side of big content. And how the path they are following will remove them as a threat in short order.

Re: Re:

I have to think that the person who set up the camera, gave it to the monkeys [...] has a pretty solid claim to the copyright of the images.

Considering that none of that actually happened, why is it all relevant?

Nobody "set up" the camera. The camera settings were not "set up" at all. (If you claim otherwise, if you borrow my camera to take pictures, but don't change the settings from the last picture I took, does that mean I own the copyright on all of the pictures you take?)

Nobody "gave" the camera to the monkeys. The photographer left it alone while he was busy with something else. Your post implies that this was a premeditated event by the camera owner, when in fact it was not.

Whoever "retreived" the images has no bearing on who owns the copyright. Copyright on photographs is based on the expressive elements (aperture, shutter, framing, etc.) and has nothing *at all* to do with who "retrieved" the images. (Again, if I borrow your camera, and there are still images on the flash card, does that mean that I own the copyright if I transfer the pictures before I give it back to you?)

Finally, whoever "tweaked them in photoshop" has no claim - whoever took the picture has the claim. If someone else makes a derivative work from them, it does not change the original copyright holder.

Re: Re: Re: Re: Re: Re:

Perhaps, but I have a healthy skepticism toward's Masnick's summaries of events or summaries of other people's statements. I find them lacking in important nuance often enough to not take them at face value as a matter of course, without some further investigation/corroboration.

Re: Re: Re: Re:

The word I'm really objecting to is only.

Anything that establishes the legality of your actions can be used as a defence - but of course - because the legal system runs the way it does- those factors that are less easy to determine are more likely to turn up as a defence in law. That fact, however, does not mean that they are somehow "lesser" than other factors.

The IP maximalist postion is to say "fair use is only a defence" - and then continue as if it was only a mitigating circumstance! That is a very dangerous sliipery slope and I think we should avoid following them down it even a tiny bit.

Re: Re: Re: Re: Re:

Re: Re: Just a thought!

Excellent! Nice work Dark! Stage one of my three stage plan is complete...someone que FUD... FUD...?!...FUUUUUDDDDD!!!>>>@!!! Damn it FUDBUSTER ... if we go straight to Darryl no one will know what fuck is going on.... sigh...

Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re:

What are you talking about? Sure it does, thats why noone can try to sell any fanfiction without getting sued.
Why was "60 Years Later: Coming Through the Rye" banned then? Or any similar case? If we could publish something recognizable as being set in harry potter land or the digital world from Tron without getting sued, it would happen.

Re: Re: Just a thought!

I am writing to you at my client's behest
Regarding your denial of takedown request.
With all due respect we believe you are mistaken
And we intend to commence litigation.

Your claims of Fair Use seem misguided.
For this, you will be fiscally chided.
For those of us on the PRO IP scene
Fair Use is a freetard's misguided wet dream.

We refute it's existence, and furthermore
Think those who claim it simply whore
Our legally owned art. We demand money
For our copyrighted work (or produce the monkey
And prove he is the author of said art.
We'll sue him too, we have no heart).

Take down the content and give us money
This isn't a joke, it isn't funny.
Stick it up our caboose? Go to Hell!
We'll return the favour and sue you as well.

In regards to your comments of flinging legal poo
Bring it on (ducking shit is what we do).
PS: Our client doesn't know this Betty Boop,
But if she even looks at our photo, we'll sue her too.

Regards: Clueless Idiot with a Law Degree,
On behalf of Clueless Idiots without one.

Re: Re:

Maybe the guy who set up the shot when he bolted the camera to the wall would own the copyright. Unless he did so as work for hire then maybe the owners of said camera get copyright.
but I have to wonder what is artistic about bolting a camera to the wall?
seems more scientific to me: "I will get the best shot of robbers by pointing the camera this way" that is scientific not artistic....

Re: Re: Like this?

Re: Re: Re:

But if the photo posted on the Daily Mail *WAS* the derivative work - i.e., a photo that had been significantly post-processed in creative ways since the original (copyright-less) photo had been taken - that would create a copyright in the derivative work that Caters / the Daily Mail could assert. At a minimum, we can see that the Daily Mail changed the orientation of one of the pics, rotating it to compensate for the odd angle of the first self-portrait; it's possible that (many) other tweaks have been made as well. One can have a copyright in a derivative work despite lacking the copyright to the original. The Daily Mail would be at the mercy of the original copyright holder - if there is one - as far its right to post its derivative work. But since the original copyright holder (the monkey? the chattel owner? nobody?) won't be asserting its right to exclude the Daily Mail from posting, they don't have to worry about that.

Again, this is all IFF the original film / RAW files have been significantly and creatively edited before being posted online.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Fanfiction generally copies more than just setting, or anything vaguely similar or recognizable. For one thing, it usually copies characters.

As for Coming Through the Rye, it copied (among other things) the Holden Caulfield character (in fact, the defendant's own expert admitted this).

Setting can mean a lot of things. If you take it to mean copying a whole cast of characters and every other detail from a fictional universe, then that's going to be considered infringement in many/most cases.

Setting can also mean something like "late 19th century London" or something. So, simply having mystery stories set in late 19th century London might be recognizable as similar to Sherlock Homes stories, but is probably not infringing.

What About Machine Intelligence

My question is, years from now, if/when we've created machines capable of truly independent thought and/or acts of creativity, who owns those creative works? Who holds the copyright? Is it the hardware maker? Is it the entities that programmed the machine (assuming such entities were, themselves, human)? Is it whoever currently owns the machine?

And, assuming we reach the point where humans' intelligences are augmented through the grafting of machine components to their brains, if those grafted components are capable of creative content generation, does the human who houses the graft own the full rights to such generated content (e.g., what if the hands that created the work were solely directed by the machine part of his intelligence rather than the meat part of his intelligence)?

Seems we're on the tip of a slippery slope with these monkeys. After all, the camera owners' agents seem to be asserting "absent a human author, we claim ownership based on the ownership of the vehicle of the creation."

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

it may "generally" copy character (which are ideas, you can't actually "copy" a character, although you can use them ),

but it doesn't matter if it does or not. As long as it's recognizable, it's out. If the setting is just 19th century london, then it's an already existing idea rather than an original one, it's not recognizable, so it's not covered under idea copyright.

The rye book didn't use the same character, they created a similar character, which they admitted was inspired by Holden Caulfield, was named something else, that they thought was "too similar" to the Holden Caulfield character.

Anyway, it doesn't matter, characters are ideas, but as long as it's recognizable you can't do it.

Make a movie on a starship that looks similar to a star trek one with a bunch of new characters wearing the same uniforms as star trek characters, and if they want to they can shut you down. It's not just actual copies ideas are covered in several ways.

contract law

Here's a legal possibility. Taking the photos from the Daily Mail site might have been in violation of the site usage contract that you agree to when you visit the site, which prohibits your taking anything at all from the site whether copyrighted or not. Likewise, his contract with Daily Mail may have specified that he allowed them the photos only on the condition that they restrict use in this way. At this point, the two legal claims are any claims the monkeys have against the photographer (it would be up to them to bring an action), and a claim by the Daily Mail against those who violated the terms of use, which would be a tricky legal case to pursue if the person is not in the UK.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

With books, the implementation is the text. With movies it's the script, the video, (soundtrack, etc). The "character" is a concept.
If you don't actually copy any significant portions of the implementation, but you still get sued for copyright infringement, what are you sued for? For "copying" the concepts. The ideas.

Re: contract law

That contract has been proven over and over to be unenforceable given that it is not explicitly agreed-to by both parties. The fact that the information is readily available via normal technical means also implies consent to use.

Re:

Re: Re: Re: Re: Crowd creativity, anyone?

"I appreciate this distinction being drawn once in a while."

Yes, the letters don't sound lawyerly. Still, it's hard to believe the (apparently real) lawyers here are so sensitive about this. Sorry mate, but lawyers have earned the collective bile vented at them (again, collective), going back to Shakespeare even.

You people are supposed to run a self-policing, self-certifying professional club, so start weeding out the bad apples or get out of the business, but for gods-sake stop whining about the lawyer bashing. Perception is reality.

A friend of mine is currently being defended from copyright infringement claims by EFF lawyers. And I bet no one here is lining up to bash that beautiful piece of pro bono work.

Yes, there are good lawyers, no one denies that. Apparently not enough to bring up the average.

Re: Re: Re: Just a thought!

Now listen here, you semi-anonymous twit,
If it's a poetry war you want then that's what you'll get,
The Use was Fair, despite potential gain monetary,
As it was used in part to provide social commentary,

You may think us whores, you may think us skanks,
But, dude, you're a lawyer, so imagine where you rank,
You're better off suing monkeys than us,
So how about you just calm down all the fuss,

As for the flinging of poop, I'll say this,
A shitting match with us will get you pissed,
For lunch we ate twelve bags of chili cheese fritos,
And washed it down with Chipotle Burritos,

So bring on your law degrees, your styled hair, your suits,
I've got enough cultural references for a million Betty Boops,
And when you've been slain in the arena of the law,
Just remember to tell everyone exactly what you saw,

A man, so splendiferous in his black armor,
He moved like a cat and he smelled like a farmer,
A sort of mixture of George Clooney and Brad Pitt,
Handsome, but with two handfuls of monkey shit,
He glided to the jury and simply dropped his pants,
And without moving a muscle, made his man-junk dance,
This is your future, unless you retreat with your troop,
Love, Dark Helmet's Legal Notice Writing Group.

You make a couple of references to US Copyright Law and the DMCA, another US invention. Surely any copyright on these photos, whether it be held by the UK Daily Mail or Caters, is under United Kingdom jurisdiction. Do you feel TechDirt is complying with UK Copyright Law in terms of Fair Use?

Re:

You make a couple of references to US Copyright Law and the DMCA, another US invention. Surely any copyright on these photos, whether it be held by the UK Daily Mail or Caters, is under United Kingdom jurisdiction. Do you feel TechDirt is complying with UK Copyright Law in terms of Fair Use?

Doesn't matter. We're a US site. Based in the US. Hosted on US servers. Targeting a US audience. The only law that matters is US law. Should there be an attempt to enforce this under UK law, we have the SPEECH Act that protects us from foreign rulings that go against US rulings on such things. UK laws and a UK court have no jurisdiction over us.

Re: Re: Just reply with this:

Minors may claim copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.

Also, this is dispositive wrt the question of ownership of copyright of the pictures

Can I register a diary I found in my grandmother's attic?

You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself. See Circular 1, Copyright Basics, section “Who Can Claim Copyright.”

Physical possession is simply not enough. Unless he owned the monkeys as well, it is, at best, the owners of the monkeys who hold the copyright.

MM is a complete prick. You're like a kindergartner screaming "Na-na-na-na" and blocking your ears someone tries to politely ask you to do something within reason. So you lifted some photos taken by some monkeys (who have absolutely no legal rights to anything) and cleverly claim you can do whatever you want (read: "na-na-na-na" again) under Fair Use. That may be so, but you will clearly take ANY CHANCE to stamp your feet on the ground to prove your non-point. Cool story bro.

UK Copyright

Doesn't matter. We're a US site. Based in the US. Hosted on US servers. Targeting a US audience. The only law that matters is US law. Should there be an attempt to enforce this under UK law, we have the SPEECH Act that protects us from foreign rulings that go against US rulings on such things. UK laws and a UK court have no jurisdiction over us.

That's not entirely true. To have jurisdiction over you, they need to sue you in the USA, yes. However, their copyrights -- should they exist, and should they be a product of UK law -- would be viable in the USA, due to the ratification and domestic implementation of the Berne Convention in 1988. That can add a wrinkle; if the copyright is good in the UK, but doesn't qualify for protection under domestic law, they may still have a claim under the treaty.

Re: Re: Just reply with this:

Derivative images

Putting aside the issue of whether any non-human primate can own copyright: at least one, and probably all of the photos have been retouched, cropped and otherwise altered for artistic improvement. This could render them derivative works, giving the photo editor (presumably Mr Slater) the copyright on these images.

Running with that thought, the derivative photos may be infringing on the original copyright, if a valid owner is ever determined, but as the original story pointed out, there probably isn't one. Thus, anyone would be free to do with them whatever they wish. THESE photos, however, would quite clearly be copyrighted.

Re: Re: Re: Re: Just a thought!

Here we go, we're at it again
I thought we were partners, even friends
But you and your counsel are angering us
With all of your poop flinging and your fuss

Now we have been reasonable, without a doubt
Your legal abuses are costing us clout
If you want to license the photo, it's for a song
With this we most inherently see nothing wrong!

The amounts of oil in our hair
Who do you think pays to put it there?
And the caviar while I'm on my third trophy wife
Have you no heart, you baboon, Get a life!

The use was not fair, not without our authorization
This is worse than being imprisoned without representation.
Your profound misdeeds will cause us to lose face.
Our boss might make us vanish without a trace!

So here we up the stakes, as only we holders can do.
You're finished in this town, sirrah, you're through!
You owe us for each person's viewing, it's plain to see.
You fill our coffers with most inherent glee.

And as the day turns to night
You'll find that even our pitbull boss will put up a fight.
For if anything, we know the copyright's inherent worth.
It's meant to fill the size of our girth.

The damages will take a moment to assess.
We implore you to do what you do best.

Re: Re: Copyrighting animal pictures

Re: Re:

meanwhile UK citizans can be extradicted to the USA for far less sorry on that point i have to argue what is good for one SHOULD be good for the other. Also a large percentage of your readers are in the UK.

That's not what they say at all. They just say that they can't *register* them. Registration, however, is *not* required for copyright. So, monkeys can still hold copyrights, even if they can't register them. And since copyright is automatic, they automatically hold it.

Re: Re: Re: Re:

It's like justification as a defense to a murder charge--you still get tried, but you raise justification as a defense. You were justified the second you did the killing, but that doesn't stop the legal system from working in the direction it always does.

No, if was an obviously legal killing, then you probably won't even be tried.

Re:

Hoisted with their own petard

I may be late to the party here, but if the basis for their takedown request is that you don't own the copyright, you might explain to them that they also don't own the copyright, and therefore (a) have no standing, and (b) ought to taking down the Daily Mail copies as well, until those monkeys sign over the licensing rights (if they're anything like capuchin monkeys, a little sex will probably convince them).

Re: contract law

"Likewise, his contract with Daily Mail may have specified that he allowed them the photos only on the condition that they restrict use in this way."

This begs a question. If it is shown that there can be no copyright on this work, having no human author, then could such a contract be enforceable? Since any such picture/photo would be automatically relegated to the public domain, I do not see how they could assert rights they do not have.

Re: Re:

"I think Daily Mail should be requested to remove them until the monkey in question gains the faculties to allow it to give permission to use its pictures."

By that point, the Mail would probably be employing said monkey to copy and paste right-wing scare stories. That's all the staff there do now anyway, and the monkey could provide a few pics to go with the articles...

Re: Re: Re: Re: Just a thought!

long time tech dirt follower.

I think your totally missing the point, and totally missed the law. Just because you twist something to suit your needs and make you smell like roses, does not mean that your right..

Think about it people, if I were to grab your camera, and capture the first and only real photo of an "alien encounter" I mean 100% real no doubts.... Who would actually own the photo? You or me? Do you think the press be able to use the photo without permissions? HELL NO, the press NEEDS permission AND would NEED to pay royalties, Reguardless of the news topic assoicated with the photo.

The original email probably originated by the "person" who actually took the photos! (It was probably a publicity stunt to begin with) And the "other person or persons who sent a reply" was eather a friend, or a family member.

Its ok, I understand why your site is so defensive about fair use, without it you and your website wouldnt have anything to post about!! LOL..

True but only if the defendant is big enough (and it matters enough to them) for the case to go to court - however many of these meritless cases are settled.

The fact is that characters and (fictional) locations have been legally accepted as covered by copyright from time to time and the precedents have encouraged more and more extreme claims to be made. Consequently, in spite of some good decisions, the whole area of case law is on a ratchet towards ever broader interpretations.

type of copyright

Seems there is some confusion here, crossed purposes - the discussion brings to mind the differences that occur in the music industry over copyright in its truest sense and mechanical copyright. Copyright (in its native sense) covers the idea, the intellectual property, the concept as realised; this is something that surely the monkey owns. Its ideas, its concept, its creation of the original work.
But mechanical copyright covers the rendition of the work; the form of its execution, rendering and interpretation into something tangible. In music, this is the recording itself - every recording of the same music being individual and copyrightable in its own right.
Strikes me that your challenger has this in mind regarding the photos - the mechanical rendition of the image. The actual files, the time and effort (if any) that went into processing them to make them look the way they do. They might indeed have some mechanical copyright over this..

Re: Re: type of copyright

As Justine Levine pointed out above - there is no copyright because these pictures were produced directly by the forces of nature (of which the monkeys are a part). The rest of the argument is pointless.

If we follow your logic the monkeys hold the copyright.
Great, the monkeys can not enter into a contract to transfer their rights to Caters. Nor can the monkeys bring a lawsuit for the improper use of their photos either.

So the monkeys having copyright is the same as if the photos are public domain, no one can control how these photos are used.

Caters just has to be a bunch of a-holes! Come on, asserting a copyright for something they don't own either? I think we should all troll their site, find something in question and file a cease and desist order on behalf of somebody else. Let them see how they like their own medicine!

Re: US vs UK copyright law

the us speech act has no validity in the UK. It is perfectly possible for you to be sued in a UK court for breaking copyright, whether they can enforce that is another matter entirely.

The rules around extradition are entirely one way and to your advantage, in the UK we can be extradited to the UK for pretty much nothing, meanwhile US citizens have significant legal protection

btw these sort of issues happens all the time for companies in other countries when they get sued in the US. have a look at the Ugg boot cases in relation to australia.

one of the things the US had been trying to do is enforce its interpretation of the law around the planet, but it keeps running into Europe that has entirely different view of its jurisprudence

However outside the whole UK vs US copyright law issue. We are forgetting that the monkeys are in Indonesia.

so what is the law regarding the rights of animals in Indonesia, are monkeys considered to exist in law, are they a being or a thing. If they are property - who are they property of?

beyond that what does Indonesian copyright law say?

PS I am writing this in the UK, it might be appearing on US site but it is being written in the UK, and then transmitted to the US, so UK copyright law applies and thus this is automatically copyright to me till 70 years after my death under UK law

Photographer sells copyright to publisher

The person who owns the copyright, (if that is the issue you are confused about) would simply be the owner of the camera, or the owner of the photographer who left his camera in a position with by fortune or mistake resulted in the photo's being taken.

Ie, if the photographer was working for a news paper, and was 'on duty' then like all the rest of the photo's he takes 'for the paper' would be copyrighted to the paper.

That is what the paper pays the photographer for, the right to make copies of his photo's.. get it ??

If you are a 'freelance' photographer, you take photo's 'on spec' and hope they are good enough to SELL to a publisher, and you do not sell the photo, you sell the copyright to that photo, that is (this is the easy part), the right to copy the photo.......

The monkeys did not pay for the photographer to be there, or pay for him to accendently leave his camera there, and if that paid photographer (paid to create works to sell the copyright of, or pre-paid to do so) had not been there "on duty", and if the paper had not paid him to buy a camera and go to the zoo then those photo's would not have been created.

So to say that the 'subject' always retains the copyright, or the actual person or being that pressed the button has copyright is incorrect.

A professional photographer for a paper or magazing does not expect to retain the copyright of the picture he SELLS to the paper. That is the process, the magazing sees the value and purchases the right to copy the image.

They purchase it of the person who was responsible for the creation of the image.

In this case, that is the photographer, not the monkeys.

Mike they are correct, it is not an issue (for you) who does own the copyright, what is the issue (for you) is who DOES NOT OWN IT, and they rightly stated that regardless of who owns the copyright, Mike.... YOU DO NOT...

When you see a copyright sign on an item, it does not have to state who that copyright is assigned too, just that it is copyrighted..

Re: US vs UK copyright law

the us speech act has no validity in the UK. It is perfectly possible for you to be sued in a UK court for breaking copyright, whether they can enforce that is another matter entirely.

The rules around extradition are entirely one way and to your advantage, in the UK we can be extradited to the UK for pretty much nothing, meanwhile US citizens have significant legal protection

btw these sort of issues happens all the time for companies in other countries when they get sued in the US. have a look at the Ugg boot cases in relation to australia.

one of the things the US had been trying to do is enforce its interpretation of the law around the planet, but it keeps running into Europe that has entirely different view of its jurisprudence

However outside the whole UK vs US copyright law issue. We are forgetting that the monkeys are in Indonesia.

so what is the law regarding the rights of animals in Indonesia, are monkeys considered to exist in law, are they a being or a thing. If they are property - who are they property of?

beyond that what does Indonesian copyright law say?

PS I am writing this in the UK, it might be appearing on US site but it is being written in the UK, and then transmitted to the US, so UK copyright law applies and thus this is automatically copyright to me till 70 years after my death under UK law

Oh, Darryl.

The person who owns the copyright, (if that is the issue you are confused about) would simply be the owner of the camera, or the owner of the photographer who left his camera in a position with by fortune or mistake resulted in the photo's being taken.

That sounds as reasonable as any other line. But where's your proof? Cite your source for that bit of law.

Ie, if the photographer was working for a news paper, and was 'on duty' then like all the rest of the photo's he takes 'for the paper' would be copyrighted to the paper.

The photographer neither worked for the news paper and was not on duty. He's not even human.

That is what the paper pays the photographer for, the right to make copies of his photo's.. get it ??

But... The paper didn't pay the photographer. Not that I saw, anyway. Cam you cite a source for that?

(How would you pay them, anyway?)

The monkeys did not pay for the photographer to be there, or pay for him to accendently leave his camera there, and if that paid photographer (paid to create works to sell the copyright of, or pre-paid to do so) had not been there "on duty", and if the paper had not paid him to buy a camera and go to the zoo then those photo's would not have been created.

That's all irrelevant. I mean, the monkeys didn't pay for the guy who carries the equipment (there's usually more than one guy can carry) to be there and if that paid worker had not been on duty and there carrying the camera and paid to go to the zoo then those photos would not have been created.

Whew, writing like you is alot of work.

A professional photographer for a paper or magazing does not expect to retain the copyright of the picture he SELLS to the paper. That is the process, the magazing sees the value and purchases the right to copy the image.

Yes, but the professional photographer isn't really involved. He's no more responsible for those photos than the guy who carries his equipment out for him.

They purchase it of the person who was responsible for the creation of the image.

In this case, there is no single person who is responsible for the creation of the image. Also, you haven't proved that this is the law.

In this case, that is the photographer, not the monkeys.

And not the news service, or the guy who carried the equipment, or the owner of the primate?

Mike they are correct, it is not an issue (for you) who does own the copyright, what is the issue (for you) is who DOES NOT OWN IT, and they rightly stated that regardless of who owns the copyright, Mike.... YOU DO NOT...

This isn't true at all. First and foremost, they have no legal standing to speak on behalf of the owners of the photo, if any. Second, there is no way for Party C to know what has transpired between Party A and Party B. If you are not the copyright holder, then you have no idea whether or not the image is being used with permission. Last, which is the same as the first but such an important point that I'm going to state it again, if you are not the copyright holder, then you have no right to give orders on the matter.

Re: Photographer sells copyright to publisher

The person who owns the copyright, (if that is the issue you are confused about) would simply be the owner of the camera, or the owner of the photographer who left his camera in a position with by fortune or mistake resulted in the photo's being taken.

Citation needed. Most movies are made with rented or borrowed cameras, so that would mean that the camera owner owns the copyrights.

So to say that the 'subject' always retains the copyright,

I don't see anyone claiming that.

They purchase it of the person who was responsible for the creation of the image.

Being the monkey.

In this case, that is the photographer, not the monkeys.

The monkey *is* the photographer.

they rightly stated that regardless of who owns the copyright, Mike.... YOU DO NOT...

Re: Re: Re:

Re:

> "On the presumption that you do not
> like to encourage copyright theft..."

Is copyright theft the stealing of someone else's copyright?

How do you do that?

If anything, SCO taught us that copyright transfer requires a S.17 204(a) writing to be a valid transfer of copyright ownership. It doesn't have to be the magna carta, it just has to clearly transfer ownership. Example: all assets of TeenyCo become property of MegaCo upon completion of the merger.

appropriate reply

My reply would be:

"Would you care to address the issue of fair use? Regardless of your assertions about these copyright takedown notices and the legitimacy there-of you have not addressed the primary concern, that being fair use. As you have chosen not to address the meat of this legal matter, that being my counter notice I will continue to use this photo under the terms of fair use.

Oh and did the monkey write your takedown notice for you? It clearly does not fit the criteria of a DCMA takedown notice."

Re: Re: Re: Re: Re: Re: Just a thought!

Salutations as well, oh Dark Armoured One!
(You really should get some sun).
I believe my colleague did previously address
At least some of your concerns regarding the Techdirt mess.

But now you now have an additional client
Who's rights and freedoms I'm sworn to prevent.
I hold, in deepest regard, poor Bobo's feelings.
Please convey my apologies (when he comes down off the ceiling).

Please inform him at once, and put this on tape-
He cannot hold copyright as he is an ape.
And while in the photo he has a charming smile,
His case is little more than a steaming pile.

Oh, and on the issue of copyrights let me just mention,
That Bono and Queen both need attention.
Please pay Queen a license fee, it's not that tough,
And pay Bono millions - just saying his name is enough.

Now, to clear up a small point of confusion.
You seem to be suffering from some strange delusion
That copyright was invented to enrich culture!
Sorry - but no! It exists to feed vultures.

Of course copyrights only exist in society
For fatcats like me to claim proprietary.
When some poor clueless innocent schmuck
Like my client (who's blood I suck)

Comes crying to me when in deep waters
After claiming more rights than he really ought to.
Do we turn artists into junkies? Of course we do!
When they're strung out and desperate they're easy to rule!

Lawyers like you in your flowing black cape,
Who refuse to be beat, bend over and rape
The poor little artists strung out on dreams
Are really on the losing team.

For now, however, I'll concede a point.
(At least until we can appoint
Another well-paid politician to fight for our cause
By sneaking in an innocuous clause),

That damages from the simian you defend
May not even cover my considerable stipend.
But don't for a moment think you've got me over a barrel.
I'll drop this matter, but quid pro quo - you get to keep Daryl.

Regards (and bananas for your simian friend),
From a Clueless Lawyer with a Dumbass Client to defend.

Re: Re: Re: Re: Re:

Well, there's a reason I said "unfortunately" fair use is only a defense...

The sad fact is, the only way to employ the fair use doctrine is to be sued and then bring it up as a defense in court. There is no meaningful way to establish fair use before the fact, and no consideration given to fair use by most copyright holders (as we see in this very story)

Re: Re: Caters didn't assert any legal claim ...

A faux-legal one. Lots of non-lawyers just LOVE to truck in fake legalese. It's funny, given those same non-lawyers' apparent hatred of lawyers, that they would so often go to such lengths to sound like one.

Re: Re: Re: Re: Re:

jurisdiction

I forgot to add this, Techdirt is subject to personal jursidiction in the United Kingdom. See Gutnick v Dow Jones
[2002] HCA 56; Lewis v King [2004] EWCA Civ 1329. The Speech Act does not recognize copyright infringement and U.K. copyright laws override U.S. copyright laws in this case.

mike is right as the photographs are included to prove the article therefore fair use. Though i doubt the authenticity of the photos and would like proof of them being taken by the monkeys. How come A they are all in focus
B no heads cut off.
C all appear professionally taken.

Re: Focus

How come A they are all in focus

I suppose then that you've never heard of auto-focus, auto-exposure and so forth. Which brings up the obvious question: How much copyright does a photographer deserve if the camera automatically does all those things and reduces the process to the point that a monkey could do it? More copyright than a monkey? That's the question the copyright shills don't want asked.

Re: Re:

Re: Photographer sells copyright to publisher

When it comes to demanding actions on the basis of having authority to do so (as in being a copyright holder) who holds the copyright is so obviously relevant that their response is bizarre.
It is irrelevant whether Mike owns the copyright or not, what matters is whether they do, and given that the story specifically states that the pictures were not taken by any human and that they the owner of the camera did not deliberately get the monkey to play with the camera it has raised the question of whether copyright can be claimed on these photo's, the reason for Mike's article in the first place.

Secondly, Mike's use of the photographs in his article would seem, barring a court deciding otherwise to be perfectly legal under fair use provision, which suggests the person sending the emails to Mike is not only, not a lawyer, but also rather dim.

Re: Re: Re: Re: Re: Re:

Re: Re: It's part of our culture ... ask Nina

Not hardly. The line is a condemnation of lawyers and how a society without them would be better.

JACK CADE
I thank you, good people- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.

DICK THE BUTCHER
The first thing we do, let's kill all the lawyers.

Far from "eliminating those who might stand in the way of a contemplated revolution" or portraying lawyers as "guardians of independent thinking", as is often claimed by actual lawyers, the line is offered as the best feature imagined yet for utopia. A very rough and simplistic modern translation would be "When I'm the King, there'll be two cars in every garage, and a chicken in every pot... and no lawyers." It's a clearly lawyer-bashing joke. This is further supported by the dialogue which follows.

DICK THE BUTCHER
The first thing we do, let's kill all the lawyers.

JACK CADE
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? That parchment, being scribbled o'er, should undo a man? Some say the bee stings, but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since.

He might just as well have been describing modern "shrink-wrap" software licensing agreements in the last sentence. Documents of the time were likely parchment, and sealed with wax. So when he says "Some say the bee stings; but I say, 'tis the bee's wax", he's making an ironic comment much like "Some men rob you with a six-gun, and some with a fountain pen." And the fact that he himself is an evil man only serves to heighten the irony, not discredit the sentiment. The more evil he is, the more the contrast is apparent.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just reply with this:

And...this would be wrong. If I set up a camera and light a scene and then a monkey trips the wire I laid, my opinion is that I own the copyright. Similarly, if I set out to have an elephant paint a picture by putting down paper, setting up paints, handing the elephant a brush and taking the painting away when I deem it finished, I believe I own the copyright to that, too. Again: like a machine, I have harnessed the animal in a way that results in a creative work. Please do not make arguments about if I were to "harness" a person in the same way--those were dealt with above.

Seriously...

You call this news? Your contact at Caters brought on no harm in asking you to say please before taking something, Techdirt reacted poorly and started yelling "OMG COPYRIGHT, WE ARE THREATENED DEFEND NOW!"

I would definitely recommend Caters bringing Techdirt for defamation over a perfectly non-legal and polite request but I will settle over saying "No more of my time spent on techdirt reading this garbage". Everyone should follow suit, regardless if there are cute pictures of monkeys or not ;)

But they seem to have avoided making any claim about copyright in the emails asking Mike to take down the pictures. In fact they have gone to the lengths of saying (I'll paraphrase) It doesn't matter who has copyright but you certainly don't.

Art or not?

Copyright law is geared to protect the artist and his/her creative output. For copyright to be relevant, we need to agree that this is indeed art. Hard (impossible?) to define, sure. Personally I call these portraits a lucky fluke. They are not the result of any artistic endeavor. The portraits themselves are great shots, but are no more a "Artistic" than the beauty of any natural wonder. Which puts these pictures outside of the sphere of intellectual property. They have no copyright owner. But they have an owner, and that's mr slater. His camera. His time. We should be grateful he shared them with us.

Re: Re: Re: Re: Re:

First, defeating can happen by mergers of convenience. Once you have a monopoly you have tremendous influence in price controls.

If we had a real market, let's pretend this would be, then the consumers would get together (think of it as a monopoly of buyers to match the monopoly of sellers) and vote to have our military stop protecting the contracts and assets by this firm unless they lowered their prices. In fact, people did get together on this. One law passed was the Sherman Anti-trust Act.

Second, defeating the competition can happen many ways that, if we were talking about any particular entertainment game, would be called violations of the rules of fair play.

For example, an umpire can be bought off and lead one team to win the season and playoff series. This would violate rules as written and would destroy the integrity of the sport in the eyes of many. Most fans would bail out. Many people would stop participating as players or opposing teams for obvious reasons.

The point is that it takes a particular rule to deny umpires to collaborate with a team. Many would consider this a good rule. Many don't want to see a monopoly where only one team (or one pair of teams) is willing to play in the league. This monopoly would be disliked by many. No team would reasonably attempt to break into that league to challenge that team.

Third, no rules could be broken but unfair play still be taken. In the baseball example, this could happen if no rule existed to disallow a team and umpire to conspire. And if the winning team got to create one new rule at the end of the year and they stated only they could conspire with that umpire, then few teams would even attempt to legally break into the league to challenge this team.

Fourth, by way of example, a monopoly in computer operating system software that can understand existing data files, if leveraged into the shoe-making business, would easily allow this monopolist (in our current environment and if unopposed by a strong collective) to dominate that shoe industry. They could sell the software updates for a lot unless you buy their shoes, for example. No one else in the shoe business could compete because no one would reasonable be able to provide the full package of software+shoes at a competitive price. With shoes and software locked in, they could keep spreading, each time potentially having an easier time dominating.. again, until a large enough collective (eg, the government of the People) steps up with a real challenge.

What is bad about business monopolies is that this is real food/shelter money that one team is being allowed to keep and make while others lose it. You can always say that we can go raise our own crops or write our own computer software or manufacture our own whatever, but such is not practical many times. At some point a government of the People would rather pass fair rules of the game, eg, restricting monopolies because of their vast leverage, rather than place many into a situation to want physical violence.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just reply with this:

> If I set up a camera
> and light a scene and
> then a monkey
> trips the wire I
> laid, my opinion
> is that I own the
> copyright.

And that would be qualitatively very different than what happened in this case.

> Similarly, if I set
> out to have an
> elephant paint
> a picture by
> putting down
> paper, setting
> up paints, handing
> the elephant
> a brush and taking
> the painting away
> when I deem it finished,
> I believe I own
> the copyright
> to that, too.

And that would be qualitatively very different than what happened in this case.

In both cases, you went to great lengths to set the scene and produce the work. The animal was just one of the tools you used to do it.

In the present the case, the photographer did *nothing* to produce the work. He accidentally left his camera within reach of some monkeys. He never intended for it to even happen and would probably have taken steps to prevent it if he knew it would happen.

For your elephant analogy to work, it would have to be a situation where you were painting your house, got tired and decided to go in for the night, and came out the next morning to find an elephant had wandered by, dipped his trunk in the paint and smeared it on your wall. You wouldn't own the copyright in that 'painting' any more than this photographer owns the copyright in these photos.

What's amusing to me is that so many people in this thread just assume these photos are copyrighted and the only hurdle is determining who owns it. The idea that there could actually be a picture, song, painting, etc. out there in the world without any copyright at all doesn't even occur to them.

The Deeper Game Afoot

I had to pee already at the top at Comments, but y'know, this is a great read! so as I plough through all these, {man there are some talented folk writing here!} I realize after half an hour, no! I Really Gotta Pee!
Since that apparently helps one think, it may explain why it dawned on me: Mike is setting out to do some Noble thing here; Do something Legal in the U.S. (theoretically neh) and if Caters caters to the right folk in the UK gov., then he might get extradited to Britain, at which time he can offer himself up for a trade for that poor sob in the UK headed this way? A Trade! Now, gonna go pee.

Not (really) Art.

Copyright law is geared to protect the artist and his/her creative output. For copyright to be relevant, you first need to establish that this is indeed "art". Hard (impossible?) to define, sure.

Personally I call these portraits a lucky fluke. They are not the result of any "artistic" endeavor. The portraits themselves are great shots, but are no more "artistic" than the beauty of any natural wonder. Which puts these pictures outside of the sphere of intellectual property. They have no
copyright owner. But they have an owner, and that's Mr Slater. His camera. His time. His adventure.

We should be grateful he shared them with us. But in doing so, he lost his right to claim what we do with them.

I'm sooo embarrassed!

Caters violating DMCA

Actually the DMCA specifically forbids someone who is NOT the copyright holder or their agent from making a takedown notice at all. You CAN NOT claim what they are claiming; it's specifically forbidden under DMCA.

Re:

Re: Re: Re: Re: Re: Re:

Yes, what you say is true, you need to assume you have a fair playing field, but that is needed anyway and I would say that is a seperate issue.
Your fair rules only need to ensure that competition isn't being prevented. They don't need to ensure there actually *is* competition (since that would require actually *unfair* practices in the case when someone is winning without using any sort of unfair practices). Anti-trust laws, as I understand are about outlawing the practice of preventing competition. They aren't about outlawing being so good at what you that no one thinks it is worthwhile to try to do it better.

Dude, dude, dude: we agree. That's why I was painting those elaborate scenarios--BECAUSE they were different qualitatively from the one here...where no copyright should attach. Sorry if I wasn't clear.

Re: Re: What Mr Slater should have done

Re:

You might want to chill with the "lifted." That carries some connotations that I'm sure you wanted to include in your post, but which absolutely don't apply. You meant to imply "stole," and you know you can't say that--admit it, Coward. Man, is that ever an appropriate name--don't even have the huevos to say what you mean when you're cloaked.

Public Domain or Great Publicity?

This debate must be great for Caters News people since the images will be kept in demand - if anyone other than yourselves is bothered about it, which I doubt. I have noted the stance has shifted by Techdirt from being entitled to use the pictures as public domain to now being fair use. Have the goalposts moved now?(youbelieve the monkeys ran off with the camera but the Guardian for eg doesn't specifically claim this nor some other news sites, the photographer set up a tripod and the monkeys used the camera a short time (a few seconds, minutes, hours?) and it seems the photographer was present - http://www.huffingtonpost.com/2011/07/05/monkey-steals-camera-takes-self-portrait_n_890236.html Which news source do you think carries the story correctly enough for you to gamble with lawyers, Caters or the tabloids?

Re:

I find it ironic, in this discussion of copyright ownership and fair use, that Hephaestus would provide a link to a humorous piece for those not familiar with his reference to the "spider as payment" emails. The irony in the link is that the blogger has lifted this piece and posted it on her blog without proper credit. David Thorne holds the copyright to that particular piece and it can be found here:

If a guest in an artist’s house accidentally spills some paint on a blank canvas, does the artist who owned the paint and canvas hold copyright to the resulting “painting”, even though its creation was wholly the result of someone else's actions?

Re: Re: type of copyright

IF there is no copyright on the original, yes. You own the copyright TO YOUR ALTERATIONS, not to the original photo--which you DID NOT AUTHOR. So, here, since the original photo, taken by the monkey, was DISCOVERED and not authored, there is no copyright on it. You, then, can claim the alterations alone, if you think it's worth the candle and the copyright office agrees that you've done something worth protecting.

If there IS a copyright on the original, and that's not yours, then you have to significantly transform the original to claim fair use of it and to be allowed copyright on your "new" work. Printing and retouching an existing photo (were there a copyright on it) would not likely qualify.

Re: Re: type of copyright

Yeah, dude: here there's a "mechanical license" in music. I'm pretty sure that's not what the above dude is talking about. No idea what a "mechanical copyright" might be, although it sounds REALLY COOL AND IMPRESSIVE.

Re:

Funny, then, right?

Because then the photographer, or whoever later tried to claim copyright, would be in the unfortunate position of saying "Yeah, those monkey-taken photos that I said were so cool because they show that monkeys know how to take their own pictures? Well, turns out that they're just run of the mill pictures of monkeys that I took myself and then lied about. But I totally own the copyrights to them, despite them now being worthless nature shots. Um....who wants to license them from me?"

Re: Seriously...

Your understanding of defamation is clearly superior to mine, since I can't see how in the world you get a defamation claim out of techdirt posting an email sent by Caters. Want to expand on how broadcasting someone's unsolicited communique without a single piece of embellishment or un-truthful editorializing qualifies for a defamation claim?

I'll tell you what: spare yourself the trouble--it doesn't. Read a fucking book before you spout shit like that. Or, better yet, don't. Just shut it.

Re:

If the monkey's can't 'own' or 'copyright' the pictures, then they are public domain (because no-one else can 'copyright' them) - hence any use by Mike is *automatically* 'fair use' as *all* public domain use is fair - even if that is actually redundant. So no 'lifting' required. (And using a term linked to physical stealing is not going to make your argument any stronger.)

"AC is a complete prick. You're like a kindergartner screaming "Na-na-na-na" and blocking your ears someone tries to politely ask you to listen to something within reason. So you accused Mike of lifting some photos taken by some monkeys (who have absolutely no legal rights to anything, os no-one else does either) and cleverly claim copyright means whatever you want (read: "na-na-na-na" again) including invalidating Fair Use. That may be so in your fevered imagination, but you will clearly take ANY CHANCE to stamp your feet on the ground to prove your non-point and abuse Mike for no reason whatsoever. Cool slip-up bro."

Re: Re: Re: Photographer sells copyright to publisher

Which is conveniently and predictably 180 degrees from whatever Mike says. So if Mike said a zebra was black and white, darryl would claim it was brown and red, only in a screed 10x as long and with less comprehensibility than if the monkeys had written it...

fair use of photo taken by monkey

In response to your point about "In fact, in some places, sending a takedown notice, if you are not the copyright holder, is what's actually against the law." I'm not sure if you were referring to the US or outside it. It's against the law in *all* places in the US, at least, because there is only one federal copyright law and the DMCA is part of that law.

But even if you *are* the copyright owner, under Section 512(f), you can be liable for knowingly materially misrepresenting that material on a Web site is infringing. And one court has taken this a little further in the fair use context.

In Lenz v. Universal, a mother posted on YouTube a video of her two children dancing to a song by the Artist Formerly Known as Prince. Universal Music, which owns the copyright in the song, sent YouTube a DMCA notice. The mother sent a counter-notification to YouTube to have her video restored, and then sued Universal for misrepresenting that the video infringed Universal’s copyright, on the ground that her use of the song was fair use. She also sought a declaratory judgment that the video was not infringing. The mother claimed that Universal had sent the notice in bad faith because Universal had failed to engage in a fair use analysis before sending it. The court agreed. It denied Universal’s motion to dismiss, holding that “in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.” So in your situation, even if Caters *were* the copyright owner, it could be liable for failing to assess first whether your use of the photos was fair use.

(Sorry if this post was too lawyer-like, but I'm a copyright lawyer...couldn't help it.)

Given how poorly written both letters were, and the number of typos and grammatical errors in each, I think it's safe to say that this site has nothing to worry about--if that's the level of writing that Caters considers satisfactory for the employees that publicly represent its interests, then it clearly isn't a very professional organization. If the firm can't even be bothered to hire a competent writer, or at the very least a proofreader, with an understanding of how to compose proper business and legal correspondence, then I seriously doubt it has any understanding of how copyright law works. As such, it's no threat to this site whatsoever. Consider it a mosquito, and just swat it away.

Re: Re: Re:

People don't need copyright to use other people's works.

It's not their work it's society's work. So much of what makes up one of these "creations" is the world around the photographer, author, etc. Did they obtain licenses to use all of these ideas that influence them or did they "steal" them? My point is that instead of thinking about copyright as something that is owned, it should be thought of as what it is, an incentive to publish. The incentive being a temporary set of exclusive rights. A set of rights that is different than those that define something as property.

Animal Copyrights

I am a monkey.
I ask these self-claimed to have photos of my person, one trillion dollars photos royalty.
Oh, you say that the photographer? His unprovoked invasion of my home and the private sector, I want to sue him.
What? You and your company to sue me to attack humans? What is this? I'm just self-defense and who knows he will not take the camera to attack me ah.

Re: Just reply with this:

How old is the monkey? Has he or she come of age? Can the monkey legally give consent? Is the monkey mentally capable of giving consent? Is the monkey in his or her right mind? How does one psychologically evaluate a monkey?

Re: Sad

Maybe his lawyers were the real monkey's in this case? I don't think that they're is any legal obligation to take these pictures down if he had direct copyright ownership in which he could point to would be one thing that would then make their case legitimate. I disagree though, that stating the monkey is in ownership is a valid point and definatly was a cheap shot considering all of the other valid points he could have potentially made, even in the case that a human stole a camera and took pictures with it they would have no legal case because of legal proprietary laws, in that case the owner of the camera has disputable rights to any and every picture taken with the legal owner of the camera, the only case in which this differs is if the camera was borrowed and a document defining the rights of the "borrower" was established. Other then that there is no legal case which dictates authority and proprietary ownership towards this monkey not to mention ofcourse the fact that it was a monkey and the intended use of the camera in which the monkey was using it can't be established. But until the photographer can legally establish copyrights of the photo their rights are what we call null and void and in any court case this would be thrown out in a fraction of a second.

I don't think I've heard anyone here utter the most legitimate question but here I go, Even in the case that the photographer did have current legal copyright establishment over the pictures unless they're is some sort of financial gain from using these photos then it completely legal to use these photo's the only case in which this might differ is in the case that he was using the picture for profit such as putting them on t-shirts, mugs, or postcards and was making some sort of financial gain. I've read the response in which they wrote to you, I can very legitimately tell you that these are not lawyers because assuming they were they would be liable for pretending to have some sort proprietary ownership of the pictures without any legal or factual evidence, this is actually a serious claim from a legal standpoint it is almost comparable to doing a search on almonds house without a warrant or presumably assuming somone guilty before proven innocent.

Legal Photos

Hi Many thanks for the informaton, its interesting but I still have few questions and concerns regarding Images or copyright law. Presently I'm in mid launch of a typical new blog/site dicussing Game Reviews and game playing in overall. Nevertheless I if at all possible want to show images/photos of these games on my site.

Would it be legel for me to take images coming from the Author for the games and release them on my website, or would I must make contact with the game designers everytime I planned to do a new post? I'm fairly sure it could be legal for me to get the game titles myself and then take pics of which I post to my online site?

Just one last query if you don't mind, would be Tv connected, if I were to take a screen shot of a Television show might I legitimately display that on my online site? With thanks for your time.

Re: Sad

...Caters appears to believe that our fair use efforts violate some totally unstated right that the Daily Mail holds on these images.

Actually, I think this is their passive-aggressive way of suggesting that the Daily Mail paid Caters to license the images--and you should follow precedent.

From a liability perspective, if the Daily Mail were to hear that these images were in the public domain, they might be inclined to demand a refund. The messages they sent you (a) make it apparent that Caters would not simply roll over in the face of such demands; and (b) provide legal cover in case civil proceedings lead to criminal charges.

The notices just smell as though they were written by someone at Caters who is afraid they solicited- (by means of the defective copyright notice) and accepted monies to which they had no right.